Overview

This paper will discuss the legal frameworks, or lack thereof, that serve to address sexual violence against women and intersectionality and what this means for implementation in both peace and wartime. It will explore how nationality and identity comes into play in legal frameworks and analyze the measures taken to address the intricacies these issues may propose. It will also delve into when and how intersectionality can come into play during times of war and peace and look at what is looks like when combined with the chosen legal frameworks.

Legal Frameworks

The legal frameworks used will be the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) and United Nations Security Council Resolution (UNSCR) 1325 on Women, Peace, and Security (WPS). CEDAW focuses on the human rights aspect of human rights. The convention serves to eliminate the barriers in place for women that aren’t there for men. CEDAW was adopted by the United Nations in 1979 and is the most comprehensive international agreement on the basic human rights of women. Also known as ‘The Treaty’, it provides an international standard for protecting and promoting women’s human rights and is often referred to as a “Bill of Rights” for women.[1]   CEDAW is considered hard law and is positioned under the human rights system in the UN General Assembly or UNGA. No derogations are allowed under CEDAW so no exceptions can be made to the law. Equality is also a key component to the document.

“The WPS agenda, or UNSCR 1325 (2000) calls for women's participation, women's protection, and prevention of violence, sometimes called the "Three P's," along with a fourth overarching principal: gender mainstreaming.”[2] UNSCR 1325 is considered soft law and only comes into play for the countries who have signed onto the document and taken up a National Action Plan (NAP). These two frameworks were chosen as they are most commonly used to look at and ensure policies used during war and peace times are cognitive of women in terms of security and ensure women’s equality is represented in policies.  

Intersectionality in Gender, War, and Peace

Intersectionality is a part of feminist theory that serves to “conceptualize the relationship between systems of oppression which construct our multiple identities and our social locations in hierarchies of power and privilege.”[3] If one were to agree that war and peace is highly gendered, which it is, then it stands to reason that intersectionality plays a key role as a part of feminist theory, which serves to understand war and peace from a feminist and gendered standpoint. Without taking intersectionality into account, most law and policymakers focusing on gender, human rights, and security fail to recognize the discriminatory stance some conventions or legal frameworks can take – leading to an exploitative and harmful situation for the very people it serves to bring about justice.

In the context of war and peace, intersectionality would be a great asset to communities experiencing conflict that have very unequal societal norms. Be it unequal race relations, status, gender, or identity. Conflict is not cut and dry and neither should be how it is evaluated. Without taking into account societal disparities, it would be hard to construct a law that would actually enact positive, meaningful, and long term change.

Analysis of Intersectionality and Legal Frameworks

Within CEDAW, there are a number of recommendations that mention intersectionality. One in particular, General Recommendation number 28 on the Core Obligations of States Parties under Article 2 specifically defines intersectionality:

18. Intersectionality is a basic concept for understanding the scope of the general obligations of States parties contained in article 2. The discrimination of women based on sex and gender is inextricably linked with other factors that affect women, such as race, ethnicity, religion or belief, health, status, age, class, caste, and sexual orientation and gender identity. Discrimination on the basis of sex or gender may affect women belonging to such groups to a different degree or in different ways than men. States parties must legally recognize and prohibit such intersecting forms of discrimination and their compounded negative impact on the women concerned. They also need to adopt and pursue policies and programmes designed to eliminate such occurrences, including, where appropriate, temporary special measures in accordance with article 4, paragraph 1, of the Convention and General Recommendation No. 25.[4]

CEDAW takes a direct approach to intersectionality and sees the need to list its definition and purpose within the document. It details the need for anti-discriminatory practices and calls for the recognition that women are affected differently than men. It also calls for the elimination of discrimination with the creation of policies and programs with the explicit aim to end such practices. What is fails to do is signify the means of holding those nations who have adopted CEDAW accountable if they were to not follow the law. This particular general recommendation does not specifically address the harms its means to right, but there is another general recommendation that does.

“General Recommendation No. 27 in CEDAW explicitly addresses a form of gender identity and sexual orientation.” [5] It mentions the discrimination of aged women and the protection of their rights, but fails to mention the rights of women with disabilities. Outright International explains General Recommendation 30, which addresses women before conflict, during conflict, and in post-conflict situations:

“General Recommendation 30 seeks to enhance state’s abilities to fully implement CEDAW in several contexts. “GR30 is broad in its thematic scope and covers gender-based violence and trafficking; participation; access to education, employment and health, and rural women; displacement, refugees and asylum-seekers; nationality and statelessness; marriage and family relations; security sector reform and disarmament, demobilization and reintegration of combatants; constitutional and electoral reform; and access to justice.”[6]

The passage by Outright International aims to clarify the broadness of the CEDAW text on intersectionality and the wide range of specific issues it covers so as to put the problem into better context. This section doesn’t mention the gender binary and instead chooses to give better scope to the various issues that can be faced, regardless of gender orientation.

While both recommendations are strongly worded, neither recommendations offer a clear way to approach the incorporation and implementation of intersectionality. It’s just offered as a basis for ‘anti-discrimination’ practices in policies and programs. Discrimination is defined in Article 1 of CEDAW as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”[7]

General Recommendation 28 also addressed the binary in a way that GR-27 does not. It specifically states that women have different experiences than men in terms of discrimination, but doesn’t employ the same methods of specifying the other underlying identity or nationality determinants listed in the definition of intersectionality. It lumps women into one large category, and men in another. Differences within each should also be recognized. Both recommendations also fail to address how to involve women in this process of anti-discriminatory policies and programs off the agenda. When used in times of peace, it would be easier to implement and train leaders at the state, community, and individual level to understand the better implement this law, but during times of war, the broad and undefined sections of CEDAW could be up for interpretation by those seeking to achieve their own ends.

Under UNSCR 1325, the section closest to mentioning the importance of intersectionality was under the prevention pillar:

“[UNSCR 1352] urges the international community to prevent all forms of gender-based violence. However, this requires seeing inter-linkages between different forms of violence with gender-based violence as well as understanding the root causes of violence in conflict-prone societies.[8]?

Understanding the root causes of violence, which in itself is a very dynamic system, gives a nod to intersectionality but doesn’t directly reference or define it. This pillar of prevention is also only referring to the issue of gender-based violence and not any of the other issues prominent in both war and peace time that are listed in CEDAW. Where are the mechanisms to ensuring anti-discriminatory procedures within the security realm for women? As UNSCR 1325 directly aims to influence the security of women and decrease the violence and other harms they may face, using intersectionality as a framework for cases in order to continue the trend of making resolutions more human-centric would be a great improvement.

In terms of intersectionality, CEDAW has a more comprehensive and definitive approach than the one UNSCR 1325 takes. There is less text up for debate in CEDAW and it also serves to make policies more accurately reflect the concerns of women and their individual needs. Both legal frameworks need better accountability methods and have to mention how to include a framework for how to women in the process. They serve as a start for a more normalized nuanced approach that serves to eliminate discrimination and improve security practices.
 

Catherine (Cathy) Howell is originally from Los Angeles, CA, where she earned a B.A. in Global Studies and a B.A. in Communications. She currently works in Washington, DC, where she is pursuing her interest in the nexus of human rights, conflict resolution, global governance & policy, and best global communication practices. She recently obtained her master’s degree in Global Communications with emphases in Public Diplomacy and Global Gender Policy from the Elliott School of International Affairs at George Washington University and hopes to wrap up her education by obtaining a Ph. D in her areas of interest.

Bibliography

Amnesty International. A Fact Sheet on CEDAW: Treaty for the Rights of Women. Amnesty USA, 2005. http://www.amnestyusa.org/sites/default/files/pdfs/cedaw_fact_sheet.pdf

Carastathis, Anna. The Concept of Intersectionality in Feminism. CSULA, 2014. http://www.academia.edu/4894646/The_Concept_of_Intersectionality_in_Feminist_Theory

CEDAW Adopts General Recommendations Including Sexual Orientation and Gender Identity. Outright International. 2016.
https://www.outrightinternational.org/content/cedaw-adopts-general-recommendations-including-sexual-orientation-and-gender-identity

Celik, A. 15 Years after UNSCR 1325: Women, Peace and Security. 2016.

http://researchturkey.org/15-years-after-unscr-1325-women-peace-and-security/

Guidebook on CEDAW General Recommendation No. 30 and the UN Security Council Resolution on Women, Peace, and Security. UN Women, 2015. https://blackboard.gwu.edu/bbcswebdav/pid-7126738-dt-content-rid-15389156_2/courses/77370_201601/CEDAW-GR30%20and%20WPS%20guidebook%2024-July-2015%20final.pdf

Miller, B; Pournik, M; Swaine, A. Women in Peace and Security through United Nations Security Resolution 1325: Literature Review, Content Analysis of National Action Plans, and Implementation. Institute for Global and International Studies, 2014. http://www.peacewomen.org/assets/file/NationalActionPlans/miladpournikanalysisdocs/igis_womeninpeaceandsecuritythroughunsr1325_millerpournikswaine_2014.pdf

[1] Amnesty International. A Fact Sheet on CEDAW: Treaty for the Rights of Women. Amnesty USA, 2005. http://www.amnestyusa.org/sites/default/files/pdfs/cedaw_fact_sheet.pdf

[2] Miller, B; Pournik, M; Swaine, A. Women in Peace and Security through United Nations Security Resolution 1325: Literature Review, Content Analysis of National Action Plans, and Implementation. Institute for Global and International Studies, 2014. http://www.peacewomen.org/assets/file/NationalActionPlans/miladpournikanalysisdocs/igis_womeninpeaceandsecuritythroughunsr1325_millerpournikswaine_2014.pdf

[3] Carastathis, Anna. The Concept of Intersectionality in Feminism. CSULA, 2014. http://www.academia.edu/4894646/The_Concept_of_Intersectionality_in_Feminist_Theory

[4] Miller, B; Pournik, M; Swaine, A. Women in Peace and Security through United Nations Security Resolution 1325: Literature Review, Content Analysis of National Action Plans, and Implementation. Institute for Global and International Studies, 2014. http://www.peacewomen.org/assets/file/NationalActionPlans/miladpournikanalysisdocs/igis_womeninpeaceandsecuritythroughunsr1325_millerpournikswaine_2014.pdf

[5]CEDAW Adopts General Recommendations Including Sexual Orientation and Gender Identity. Outright International. 2016. https://www.outrightinternational.org/content/cedaw-adopts-general-recommendations-including-sexual-orientation-and-gender-identity

[6] Guidebook on CEDAW General Recommendation No. 30 and the UN Security Council Resolution on Women, Peace, and Security. UN Women. 2015 https://blackboard.gwu.edu/bbcswebdav/pid-7126738-dt-content-rid-15389156_2/courses/77370_201601/CEDAW-GR30%20and%20WPS%20guidebook%2024-July-2015%20final.pdf

[7] Guidebook on CEDAW General Recommendation No. 30 and the UN Security Council Resolution on Women, Peace, and Security. UN Women. 2015 https://blackboard.gwu.edu/bbcswebdav/pid-7126738-dt-content-rid-15389156_2/courses/77370_201601/CEDAW-GR30%20and%20WPS%20guidebook%2024-July-2015%20final.pdf

[8] Celik, A. 15 Years after UNSCR 1325: Women, Peace and Security. 2016.

http://researchturkey.org/15-years-after-unscr-1325-women-peace-and-security/